Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)
After plaintiff’s counsel’s objection was overruled and Dr. Bend testified, she requested to call Ms. Simms in rebuttal. A hearing was held outside the presence of the jury, and her cross-examination established Ms. Simms’s lack of experience, knowledge, training and education. Her testimony directly rebutted Dr. Bend’s testimony that she was well trained and experienced. Despite same, the court denied plaintiff’s counsel’s request to call Ms. Simms. Ms. Simms was subpoenaed and available to testify.
Evidence Code section 801 subd. (b) requires that the matter relied upon by the expert in forming his opinion must be of a type that reasonably may be relied upon by experts in forming an opinion upon the subject to which the testimony relates. In large measure this assures the reliability and trustworthiness of the information used by experts in forming their opinion. (Evid. Code section 801 and Law Revision Commission Comments.) Expert opinion must be based on matters that the expert may reasonably rely on and is not otherwise legally precluded as a basis for the opinion. (Evid. Code section 801(b).)
When an expert witness bases his testimony entirely or chiefly on incompetent evidence, the opinion should be rejected. (San Diego Land & Town Co. v. Neale (1891) 88 Cal. 50, 62-63; Young v. Bates Valve Bag Corp. (1942) 52 Cal.App.2d 86, 96.) Herein, Dr. Bend’s opinion based on his brain testing was entirely founded on inadmissible and unreliable testing. There was no legal foundation for admitting same.
A trial court has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay. (People v. Price (1991) 1 Cal.4th 324, 416.) A trial court also has discretion to weigh the probative value of inadmissible evidence relied upon by an expert witness … against the risk that the jury might improperly consider it as independent proof of the facts recited therein. (People v. Coleman (1985) 38 Cal.3d 69, 91.)
This is because a witness’s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into independent proof of any fact. (Korsak v. Atlas Hotels, Inc., (1992) 2 Cal.App.4th 1516, 1524-1525, citing Whitfield v. Roth (1974) 10 Cal.3d 874, 893-896; Graham, Expert Witness Testimony and the Federal Rules of Evidence: Insuring Adequate Assurance of Trustworthiness (1986) U. Ill. L.Rev. 43, 66 [ evidence admitted solely to form the basis of an expert’s opinion under [Federal Rules of Evidence] Rule 703 will not support a prima facie case ]; 2 McCormick on Evidence, supra, § 324.3, p. 373 and fn. 8 [same].
Unquestionably, expert witnesses can be very persuasive to jurors on topics unfamiliar to the layperson. (§801, subd. (a).) It is prejudicial error to exclude relevant and material expert evidence where a proper foundation for it has been laid, and the proffered testimony is within the proper scope of expert opinion. (Reynolds v. Natural Gas Equipment, Inc. (1960) 184 Cal.App.2d 724, 740.) Conversely, the courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion.
(Korsak v. Atlas Hotels, Inc., (1992) 2 Cal.App.4th 1516, 1523.) (See Part 8 of 12.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.